OPINION OP THE COURT.
HANNA, C. J.
(after stating the facts as above). The principal point raised by appellants here (respondents below) is that the injunction granted in the trial court operated to deprive the defendant Corn from having the benefit, in his contest case, of section 1999, Code 1915, providing for the inspection of ballots by contesting parties in contested elections, a question, however, which is dependent upon the correctness of the trial court’s disposition of the case upon the pleadings. Appellants urge that their respective motion to dissolve the injunction should have been treated and considered as answers, pointing out that in each of the motions the respondents denied and controverted each and every allegation contained in the complaint, save and except those allegations therein admitted to be true.
[1-3] It is urged that the face of a pleading controls its character, and not the name given to it by the pleader, and that our code prescribes no form of answer further than to require that it contain a denial of the material allegations of the complaint, with the privilege, of course, of setting up new matter, it being contended that this is done in the motions to dissolve referred to. Authorities are cited in support of this contention, and we apprehend that the contention is correct. Cleveland, C., C. & St. L. Ry. Co. v. Rudy, 173 Ind. 181, 89 N. R. 951. It must be borne in mind, however, that the court gave judgment upon the pleadings upon the theory that every pleading must be, under our practice, subscribed by the party making same, or his attorney, and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also; citing section 4123, Code 1915. It has been held that where a verification is required, as is the ease under our statute, and is omitted, the pleading may be stricken out or judgment may be had on the pleadings'. Hearst v. Hart, 128 Cal. 327, 60 Pac. 846. In the case cited it was contended that the proper course would have been to move to strike the answer from the files for want of a verification, and then take judgment for want of an answer, but the Supreme Court of California held that either that course might be pursued or a motion for judgment on the pleadings was sufficient; citing tbe case of McCullough v. Clark, 41 Cal. 298, See, also, 22 Ency. P. & P. 1049, 31 Cyc. 537.
[4] It would appear that the trial court elected to treat the motion to dissolve as a motion rather than an answer, possibly because respondents had designated it as a motion to dissolve, and also upon the theory that, even though it be treated as an answer, it was defective, in that it was not verified, and therefore he might elect to disregard it. Under authority of the California cases, his action in this respect was correct. The question of whether or not the bill was wanting in equity, which is raised by the demurrer, calls for our consideration. While it is urged that appellant waived the questions raised by the demurrer by pleading over, it is apparent that the demurrer in its first paragraph asserted that the petition did not state facts sufficient to constitute a cause of action, standing upon section 1999, Code 1915, which, it is asserted conferred the very right which the appellee attempts to cut off by applying for the injunction in question. In the case of Webb v. Beal, 20 N. M. 218, 148 Pac. 487, this court held that:
“A defendant, by answering over, upon demurrer overruled, waives all objections to tbe petition of tbe plaintiff, except to tbe jurisdiction of tbe court and tbe failure of petition to state a cause of action.”
In the light of this well-established principle we cannot agree that appellant waived his attack upon the complaint in this ease by pleading over, assuming that he did plead over. We therefore find it necessary to pass upon the merits of the objection to the complaint or petition filed herein. Section 1999, which it is argued must be disregarded if the complaint in this case is to be sustained, is as follows:
“All votes shall be by ballot, eacb voter being required to deliver bis own vote in person. Said ticket shall in no case be examined unless tbe election be contested; but shall be delivered by tbe judges of tbe election to tbe county clerk, who shall retain them until the expiration oí the time allowed for the contesting of the election, and they shall' then be destroyed.
“But in ease said election is contested, it shall be the-duty of the county clerk to supply said tickets for the inspection of the contesting parties, on being called upon to d'o so by any of said parties after haying given at least five days notice to the opposing candidate; said examination shall then be made by the board of county commissioners in the presence of the contending parties, and the result shall be forwarded by said board, under seal, to the powers authorized by law to determine the legality of the election.”
[5] By appellee it is contended that, under section 1 oí article 7 of the constitution of New Mexico, among other things it is provided that “the legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections, and guard against the abuse of elective franchise," and that therefore to permit the opening of the ballot boxes in question and examination of the ballots would destroy all secrecy of the voters’ ballot so far as the precincts in question are concerned. In support of this contention, among other authorities cited is Cooley’s Constitutional Limitations, 912. That eminent author said:
“Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged; and to allow evidence of its contents when he has not waived the privilege is to encourage trickery and fraud, and would in effect establish this remarkable anomaly, that, while the law from motives of public policy establishes the secret ballot with a view to conceal the elector’s 'action, it at the same time encourages a system of espionage, by means of which the veil of secrecy may be penetrated and the voter’s action disclosed to the public.”
We have no quarrel with the principie announced, but the question before us is solely one of statutory construction, and we must turn to section 1999 of our code. When arriving at the intention of the- legislature there expressed, unless it is in conflict with the constitutional provision referred to, the complaint in this ease must be held insufficient, because it is clearly sought by the complaint to deny appellant tbe right to avail himself of the remedy provided by the section in question. It is to be noted that, upon the giving of five days’ notice to the opposing candidate in ease of contested elections, an examination shall be made by the board of county commissioners in the presence of the contending parties, ,and the result forwarded, to the powers’authorized by law to determine the legality of the election.
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OPINION OP THE COURT.
HANNA, C. J.
(after stating the facts as above). The principal point raised by appellants here (respondents below) is that the injunction granted in the trial court operated to deprive the defendant Corn from having the benefit, in his contest case, of section 1999, Code 1915, providing for the inspection of ballots by contesting parties in contested elections, a question, however, which is dependent upon the correctness of the trial court’s disposition of the case upon the pleadings. Appellants urge that their respective motion to dissolve the injunction should have been treated and considered as answers, pointing out that in each of the motions the respondents denied and controverted each and every allegation contained in the complaint, save and except those allegations therein admitted to be true.
[1-3] It is urged that the face of a pleading controls its character, and not the name given to it by the pleader, and that our code prescribes no form of answer further than to require that it contain a denial of the material allegations of the complaint, with the privilege, of course, of setting up new matter, it being contended that this is done in the motions to dissolve referred to. Authorities are cited in support of this contention, and we apprehend that the contention is correct. Cleveland, C., C. & St. L. Ry. Co. v. Rudy, 173 Ind. 181, 89 N. R. 951. It must be borne in mind, however, that the court gave judgment upon the pleadings upon the theory that every pleading must be, under our practice, subscribed by the party making same, or his attorney, and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also; citing section 4123, Code 1915. It has been held that where a verification is required, as is the ease under our statute, and is omitted, the pleading may be stricken out or judgment may be had on the pleadings'. Hearst v. Hart, 128 Cal. 327, 60 Pac. 846. In the case cited it was contended that the proper course would have been to move to strike the answer from the files for want of a verification, and then take judgment for want of an answer, but the Supreme Court of California held that either that course might be pursued or a motion for judgment on the pleadings was sufficient; citing tbe case of McCullough v. Clark, 41 Cal. 298, See, also, 22 Ency. P. & P. 1049, 31 Cyc. 537.
[4] It would appear that the trial court elected to treat the motion to dissolve as a motion rather than an answer, possibly because respondents had designated it as a motion to dissolve, and also upon the theory that, even though it be treated as an answer, it was defective, in that it was not verified, and therefore he might elect to disregard it. Under authority of the California cases, his action in this respect was correct. The question of whether or not the bill was wanting in equity, which is raised by the demurrer, calls for our consideration. While it is urged that appellant waived the questions raised by the demurrer by pleading over, it is apparent that the demurrer in its first paragraph asserted that the petition did not state facts sufficient to constitute a cause of action, standing upon section 1999, Code 1915, which, it is asserted conferred the very right which the appellee attempts to cut off by applying for the injunction in question. In the case of Webb v. Beal, 20 N. M. 218, 148 Pac. 487, this court held that:
“A defendant, by answering over, upon demurrer overruled, waives all objections to tbe petition of tbe plaintiff, except to tbe jurisdiction of tbe court and tbe failure of petition to state a cause of action.”
In the light of this well-established principle we cannot agree that appellant waived his attack upon the complaint in this ease by pleading over, assuming that he did plead over. We therefore find it necessary to pass upon the merits of the objection to the complaint or petition filed herein. Section 1999, which it is argued must be disregarded if the complaint in this case is to be sustained, is as follows:
“All votes shall be by ballot, eacb voter being required to deliver bis own vote in person. Said ticket shall in no case be examined unless tbe election be contested; but shall be delivered by tbe judges of tbe election to tbe county clerk, who shall retain them until the expiration oí the time allowed for the contesting of the election, and they shall' then be destroyed.
“But in ease said election is contested, it shall be the-duty of the county clerk to supply said tickets for the inspection of the contesting parties, on being called upon to d'o so by any of said parties after haying given at least five days notice to the opposing candidate; said examination shall then be made by the board of county commissioners in the presence of the contending parties, and the result shall be forwarded by said board, under seal, to the powers authorized by law to determine the legality of the election.”
[5] By appellee it is contended that, under section 1 oí article 7 of the constitution of New Mexico, among other things it is provided that “the legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections, and guard against the abuse of elective franchise," and that therefore to permit the opening of the ballot boxes in question and examination of the ballots would destroy all secrecy of the voters’ ballot so far as the precincts in question are concerned. In support of this contention, among other authorities cited is Cooley’s Constitutional Limitations, 912. That eminent author said:
“Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged; and to allow evidence of its contents when he has not waived the privilege is to encourage trickery and fraud, and would in effect establish this remarkable anomaly, that, while the law from motives of public policy establishes the secret ballot with a view to conceal the elector’s 'action, it at the same time encourages a system of espionage, by means of which the veil of secrecy may be penetrated and the voter’s action disclosed to the public.”
We have no quarrel with the principie announced, but the question before us is solely one of statutory construction, and we must turn to section 1999 of our code. When arriving at the intention of the- legislature there expressed, unless it is in conflict with the constitutional provision referred to, the complaint in this ease must be held insufficient, because it is clearly sought by the complaint to deny appellant tbe right to avail himself of the remedy provided by the section in question. It is to be noted that, upon the giving of five days’ notice to the opposing candidate in ease of contested elections, an examination shall be made by the board of county commissioners in the presence of the contending parties, ,and the result forwarded, to the powers’authorized by law to determine the legality of the election. Without referring to other statutory provisions, it is sufficient to point out that other statutes upon the subject of elections did not provide for the numbering of the ballots, as is the case under the recent statute adopted by the legislature, so that a,t the time of the institution of this «uit the law only contemplated that a recount might be had by the board of county commissioners in all contested cases. Under the practice at that time in effect, the county commissioners in paiivassing election re“turns only certified the result for the county, basing their conclusion upon the certificates of the judges and clerks of election in the several precincts of the county. The legislature, in adopting section 1999 of our code, evidently, at least, intended to provide for a recount by the board of county commissioners. But little advantage other than this could be secured by the section in question, as the law at that time did not contemplate the numbering of the ballots, and the section referred to would not have accomplished anything other than a recount by the board of county commissioners, as we view the matter. We do not overlook the fact that it is contended in this case that in the two precincts in question the ballots had actually been numbered, and corresponding numbers placed opposite the names of the woters on the pollbooks, and we are cited to the Carabajal v. Lucero case, 22 N. M. 30, 158 Pac. 1088, where this -court held that:
“In the absence of a showing of fraud' on the part of the election officers, sufficient to invalidate the returns and to cast discredit upon the ballots, preserved as required 'by l'aw, the individual voters cannot he permitted to testify :as to the candidates for whom they voted at an election.’’
As we view tbe matter, however, this contention is. going beyond the issues in the case, inasmuch as the sole question presented by the record in this case was. the right of the appellee to enjoin the appellant from seeking a recount of the ballots in the two precincts in Lincoln county, under the provisions of section 1999 of the code. Whether or not the ballots themselves could be examined, and the way in which the individual voter cast his ballot could be shown, is a matter which would arise in the contest case, and is not now presented by the record in this case, which stands solely upon the right of appellant to have the examination provided for in section 1999. This statute, in our opinion, does not violate the constitutional provision guaranteeing a secret ballot, and the appellant was clearly entitled to the privilege sought by him. For the reasons stated, the judgment of the trial court must necessarily be reversed, and the cause remanded for further proceedings -r and it is so ordered.
PARKER and Boberts, J.J., concur.